SUPREME COURT OF ARKANSAS
DANIEL R. PLUNKETT,
STATE OF ARKANSAS,
Opinion Delivered October 12, 2006
MOTION FOR RULE ON CLERK
Appellant Daniel R. Plunkett, by and through his attorney, has filed a motion for rule
on the clerk. His attorney, Lohnes T. Tiner, states in the motion that he admits responsibility
for failing to timely file the record.
This court clarified its treatment of motions for rule on the clerk and motions for
belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said
that there are only two possible reasons for an appeal not being timely perfected: either the
party or attorney filing the appeal is at fault, or there is “good reason.” McDonald v. State,
356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely
perfected. The party or attorney filing the appeal is therefore faced with two
options. First, where the party or attorney filing the appeal is at fault, fault
should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second,
where the party or attorney believes that there is good reason the appeal was
not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit
admitting fault before we will consider the motion, an attorney should candidly admit fault
where he or she has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Tiner has candidly admitted fault.
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee
on Professional Conduct.